VoteKansas.org

A task force of parole officers made up a list of parolees to be searched in the Syracuse area, and defendant was handcuffed and detained for his parole search, with the officers finding cocaine in his car out front of his house. The search was legal. People v. Johnson, 2012 NY Slip Op 3317, 2012 N.Y. App. Div. LEXIS 3336 (4th Dept. April 27, 2012).*

A buy of heroin out of defendant’s truck was probable cause to search it under the automobile exception. United States v. Williams, 2012 U.S. App. LEXIS 8564 (11th Cir. April 27, 2012).*

Defense counsel was not ineffective for not challenging the voluntariness of consent where the search was based on a dog alert. Consent or not was “immaterial.” United States v. Vazquez-Villa, 2012 U.S. Dist. LEXIS 58690 (D. Kan. April 27, 2012),* prior appeal 423 Fed. Appx. 812 (10th Cir. 2011).

The City of Liberty, Kentucky, in a case fraught with irony by the location, cannot conduct checkpoints to stop cars to check whether the car has a affixed a “city sticker” proving that the cars on the street belong to residents. It uttery fails Edmond, Prouse, Sitz, and special needs analysis. This had no valid safety purpose for a checkpoint. Search incident occurred. Singleton v. Commonwealth, 2012 Ky. LEXIS 39 (April 26, 2012):

The Commonwealth argues that Prouse should be read as approving traffic checkpoints designed to verify compliance with vehicle registration and operator licensing laws which have no impact upon highway safety. We must disagree. In Prouse, the checkpoint's purpose was found valid only because the licensing and registration requirements advanced the public interest in highway safety:

We agree that the States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed. Automobile licenses are issued periodically to evidence that the drivers holding them are sufficiently familiar with the rules of the road and are physically qualified to operate a motor vehicle. The registration requirement and, more pointedly, the related annual inspection requirement in Delaware are designed to keep dangerous automobiles off the road. Unquestionably, these provisions, properly administered, are essential elements in a highway safety program.

Prouse, 440 U.S. at 658 (footnotes omitted).

This point was expressly confirmed in Edmond, "Not only does the common thread of highway safety thus run through Sitz and Prouse, but Prouse itself reveals a difference in the Fourth Amendment significance of highway safety interests and the general interest in crime control." Edmond, at 40.

As the trial court found, the City of Liberty's sticker ordinance "does not have as its purpose anything remotely connected to border patrol or highway safety." We find nothing in the record to refute that finding. It is also apparent that the checkpoint had no information-seeking function of the sort approved in Lidster. The checkpoint's only purpose was to enforce a revenue-raising tax upon vehicles in the city. Thus, the checkpoint to enforce the sticker ordinance comports with none of the purposes which the United States Supreme Court has found to be important enough to override the individual liberty interests secured by the Fourth Amendment.

[Note: They should be thankful this was resolved in a criminal case rather than an expensive civil rights case like Edmond was.]

ST. LOUIS (AP) — High winds swept through a beer tent where 200 people gathered after a Cardinals game Saturday, killing one and seriously injuring five others. But the owner of the St. Louis bar that hosted the crowd said it was lightning — not wind — that killed the ...

Defendant was stopped for parking over a line, which was not even a violation of law. Because defendant appeared nervous, the officer frisked him for officer safety. The frisk was unlawful for a stop for something that wasn’t even an offense. Mistake of law will not support a stop. Gilmore v. State, 2012 Md. App. LEXIS 42 (April 25, 2012).

Plaintiff’s claim that her arrest was without probable cause or qualified immunity is sustained, and the district court properly granted summary judgment for her. That an arrest without probable cause is unconstitutional is well established. Merchant v. Bauer, 2012 U.S. App. LEXIS 8469 (4th Cir. April 26, 2012).*

Shooting the unarmed plaintiff drunk driver six times in the legs with SL6 polyurethane bullets for not getting out of her car fast enough was excessive force as a matter of law, and the jury verdict for the defendants is reversed. Phillips v. Community Ins. Corp., 2012 U.S. App. LEXIS 8582 (7th Cir. April 27, 2012) (2-1):

To determine whether a constitutional violation has occurred, we first evaluate the level of force used to arrest Phillips. The record establishes that the force exerted by an SL6 bullet is roughly comparable to a projectile from a bean-bag shotgun. Other courts of appeals have observed that baton launchers and similar "impact weapons" employ a substantially greater degree of force than other weapons categorized as "less lethal," such as pepper spray, tasers, or pain compliance techniques. In Deorle v. Rutherford, the Ninth Circuit considered a bean-bag shotgun projectile as "something akin to a rubber bullet." 272 F.3d 1272, 1280 (9th Cir. 2001). Deorle concluded that "the cloth-cased shot constitutes force which has the capability of causing serious injury, and in some instances does so." An officer provided expert testimony that a "Use of Force Continuum ... would list an impact weapon high on the schedule of force" and that "[i]t would be unreasonable for an officer to use an impact weapon on an unarmed person." Id. at 1280 & n.17 "Such force is much greater than that applied through the use of pepper spray ... or a painful compliance hold ...." Id. at 1279-80 (citations omitted); see also Thompson v. City of Chicago, 472 F.3d 444, 451 & nn.18-19 (7th Cir. 2006) (officer testimony regarding Chicago Police Department policies limiting use of "impact weapons" to "high-level, high-risk assailants" and describing such weapons as "unwarranted against a suspect resisting arrest" by punching and struggling); Mercado v. City of Orlando, 407 F.3d 1152, 1157 (11th Cir. 2005) (observing that the SL6 weapon "is classified as a 'less lethal' munition, [but that local] police regulations recognize that it can be used as a deadly weapon.").

Defendant's companion did not have the authority to consent to a search of his van after he gave her the keys for the limited purpose of checking on the dog and locking the van. State v. Kurokawa-Lasciak, 2012 Ore. App. LEXIS 521 (April 25, 2012), on remand from State v. Kurokawa-Lasciak, 351 Ore. 179, 263 P.3d 336 (2011):

Under these precepts, the consent issue in this case reduces to the question of whether defendant and Campbell had an understanding that Campbell had common access to and control of the van when she gave Bennett consent to search it. The trial court, relying on a federal case under the Fourth Amendment (United States v. Morales, 861 F2d 396 (3rd Cir 1988)), ruled that Campbell had authority to consent (although, as noted, the court also ruled that that consent was superseded by defendant's refusal). We do not find Morales helpful. The only issue in that case was whether a person who is the driver, but not the lessee, of a rental car, can consent to a search of the entire car, and the court based its decision on the fact that Morales, as the nonlessee driver, had immediate possession of and control over the car: "By giving Morales control over the car, [the actual lessee] conferred on Morales power to consent to a reasonable search of it." Id. at 399. No such delegation of control exists on the facts of this case. The only evidence that Campbell had control of defendant's van was the fact that he had given her the key. However, as we have previously held, mere possession of the key to premises does not necessarily indicate complete access or control. Fuller, 158 Ore. App at 506 (consenting co-occupant had key, but nonetheless lacked authority to consent to search of nightstand).

[Note: No cases on the Oregon court's website since February.]

Oregon’s warrantless eavesdropping requirement to record a CI and his target requires exigency and probable cause. State v. Miskell, 2012 Ore. LEXIS 269 (April 26, 2012),* revg 239 Or. App. 629, 246 P.3d 755 (2010):

Another aspect of the provision's wording supports defendant's contention that the legislature had in mind the well-known constitutional doctrine of exigent circumstances that obviate the need for a warrant. Law enforcement officers who wish to proceed without a court order under ORS 133.726(7)(b) must be able not only to point to "circumstances of such exigency that it would be unreasonable to obtain a court order," but also must have "probable cause to believe that [the person whose communication is to be intercepted] has committed, is engaged in committing or is about to commit" a felony. The phrase "probable cause" inescapably alludes to a specialized legal concept associated with the constitutional prohibition (in both the Oregon and United States constitutions) against unreasonable searches and seizures, and its use in ORS 133.726(7)(b) appears to confirm that the entir provision, including the "exigency" wording, was intended as a reference to the familiar "probable cause plus exigent circumstances" exception to the warrant requirement. See, e.g., State v. Meharry, 342 Or 173, 177, 149 P3d 1155 (2006) (warrantless search permitted if police could show probable cause and exigent circumstances).

On remand from Kentucky v. King, the Kentucky Supreme Court finds no exigency and suppresses again. The state failed in its burden to show exigency. King v. Commonwealth, 2012 Ky. LEXIS 45 (April 26, 2012):

This case is before this Court on remand from the United States Supreme Court, Kentucky v. King, __ U.S. ___, 131 S. Ct. 1849 (2011), rev'g King v. Commonwealth, 302 S.W.3d 649 (Ky. 2010), to determine whether exigent circumstances existed when police made a warrantless entry into an apartment occupied by Appellant Hollis King. We conclude that the Commonwealth has failed to show circumstances establishing the imminent destruction of evidence. We therefore reverse the original ruling of the circuit court and remand.

. . .

Turning to the question at hand, we conclude that the Commonwealth failed to meet its burden of demonstrating exigent circumstances justifying a warrantless entry. During the suppression hearing, Officer Cobb repeatedly referred to the "possible" destruction of evidence. He stated that he heard people moving inside the apartment, and that this was "the same kind of movements we've heard inside" when other suspects have destroyed evidence. Cobb never articulated the specific sounds he heard which led him to believe that evidence was about to be destroyed.

In fact, the sounds as described at the suppression hearing were indistinguishable from ordinary household sounds, and were consistent with the natural and reasonable result of a knock on the door. Nothing in the record suggests that the sounds officers heard were anything more than the occupants preparing to answer the door.

The police officers' subjective belief that evidence was being (or about to be) destroyed is not supported by the record, and this Court cannot conclude that the belief was objectively reasonable. "[N]o exigency is created simply because there is probable cause to believe that a serious crime has been committed[.]" Welsh v. Wisconsin, 466 U.S. 740, 753 (1984) (citing Payton, 445 U.S. 573). Exigent circumstances do not deal with mere possibilities, and the Commonwealth must show something more than a possibility that evidence is being destroyed to defeat the presumption of an unreasonable search and seizure.

LOS ANGELES (AP) — A moderate earthquake has rattled Southern California.

The U.S. Geological Survey says the magnitude 4.1 quake struck 8:07 a.m. Saturday. It was centered along the San Andreas Fault near Devore, in San Bernardino County. Some buildings swayed in downtown Los Angeles, about 60 miles to the ...

Just because the defendant attempted to elude the police before, there was no exigency to enter a hotel room without a warrant because there was no evidence that the defendant knew the police were tailing him. United States v. Ramirez, 2012 U.S. App. LEXIS 8451 (8th Cir. April 26, 2012):

"We review the district court's findings of historical fact for clear error, but the ultimate determination of whether the facts as found constitute exigent circumstances is reviewed de novo." United States v. Kuenstler, 325 F.3d 1015, 1021 (8th Cir. 2003). "The analysis of whether [the exigent circumstance] exception to the warrant requirement has been made out is an objective one 'focusing on what a reasonable, experienced police officer would believe.'" Id. at 1021 (quoting In re Sealed Case 96-3167, 153 F.3d 759, 766, 332 U.S. App. D.C. 84 (D.C. Cir. 1998)). "[T]he police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests." Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984). When the exigency at issue is destruction of evidence, police officers must demonstrate a sufficient basis for an officer to believe that somebody in the residence (or hotel room, in this case) will imminently destroy evidence. United States v. Clement, 854 F.2d 1116, 1119 (8th Cir. 1988).

. . .

Looking then at the remaining two bases for the district court's analysis, the circumstances relied upon by the district court are not exigent. "The urgency that would justify allowing the police officers, rather than a neutral judicial officer, to draw the reasonable inferences supporting this entry is not present in these facts." United States v. Duchi, 906 F.2d 1278, 1282 (8th Cir. 1990). At the time these officers attempted to enter room 220, they reasonably believed that two of the occupants of room 220 possessed heroin in their shoes, and the officers believed that the men had, possibly, attempted to elude the police either to flee themselves, which seems more tenable, or, more tenuously, to destroy the evidence at some point. That the officers tracked the men also does not impact our analysis. There is no evidence supporting the inference that these men knew the police were tracking them at all, which might lend credence to that line of reasoning as it relates to the imminent destruction of evidence. Also, knowledge that drugs were in the room does not suffice to conclude that destruction was imminent.

NORTH BEND, Wash. (AP) — Peter Keller spent eight years carving his hole in the side of the mountain, camouflaging the rugged underground bunker with ferns and sticks and stocking it with a generator and ammunition boxes sealed in Ziploc bags. Suspected in the deaths of his wife, daughter and ...